United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
ROSENTHAL, CHIEF UNITED STATES DISTRICT JUDGE
August 2018, Jessie Christian Salgado sued Mike Pompeo, the
Secretary of State, and Kathe Harrell, Acting Director of the
Houston Passport Agency, seeking a declaratory judgment that
he is a United States citizen by birth and entitled to have
the Department of State issue him a passport. (Docket Entry
No. 1 at 9). Salgado also seeks a writ of mandamus ordering
the Department to issue him a passport. (Id. at
8-9). The government moves to partially dismiss the petition,
arguing that Salgado may sue under only 8 U.S.C. §
1503(a), not the other authority that he asserts. (Docket
Entry No. 11 at 1). After a careful review of the petition,
motion, response, record, and applicable law, the court
grants the government's motion. The reasons are explained
in detail below.
Department revoked Salgado's passport on November 18,
2013, on the ground that he was born in Mexico. (Docket Entry
No. 1-1 at 4). In February 2017, Salgado applied for a
passport, which the Department denied in December 2017.
(Id. at 7). The revocation and denial were unlawful,
Salgado alleges, because he was born in Conroe, Texas on
March 8, 1985. (Docket Entry No. 1 at 3). Salgado concedes
that he has a Mexican birth registration dated March 14,
1985, stating that his birthplace is Durango, Mexico.
(Id. at 3, 6). He argues that the Mexican government
invalidated the March 1985 registration and that the State of
Texas issued him a delayed birth certificate in January 2010,
listing his birthplace as Conroe, Texas. (Id. at
3-4). Salgado sued Secretary Pompeo and Director Harrell
under 5 U.S.C. § 701 et seq. (the
Administrative Procedure Act); 8 U.S.C. § 1503(a)
(denial of a citizen's rights and privileges); 22 U.S.C.
§ 211a et seq. (the Passport Act); and 28
U.S.C. §§ 1331 (federal-question jurisdiction),
1361 (the Mandamus Act), 1651 (the All Writs Act), and 2201
(the Declaratory Judgment Act). (Id. at 1). He also
challenges the Department's actions under the Full Faith
and Credit Clause and the Tenth and Fourteenth Amendments.
(Id. at 1-2, 7).
government moves to dismiss Salgado's petition in part
under Rule 12(b)(1) of the Federal Rules of Civil Procedure
for lack of subject-matter jurisdiction, and for failure to
state a plausible claim under Rule 12(b)(6). (Docket Entry
No. 11 at 2). The government concedes that Salgado has stated
a claim for citizenship under 8 U.S.C. § 1503(a).
(Id. at 1). The government asserts that the court
lacks jurisdiction to consider the remaining alleged
statutory and constitutional violations, and that Harrell is
an improper party because § 1503(a) allows for actions
only against “the head of [a] department, ” not
subordinate officers. 8 U.S.C. § 1503(a); (Docket Entry
No. 11 at 8).
The Legal Standards
12(b)(1) governs challenges to a court's subject-matter
jurisdiction. “Under Rule 12(b)(1), a claim is properly
dismissed for lack of subject-matter jurisdiction when the
court lacks the statutory or constitutional power to
adjudicate the claim.” In re FEMA Trailer
Formaldehyde Prods. Liab. Litig. (Miss. Plaintiffs), 668
F.3d 281, 286 (5th Cir. 2012) (quotation omitted).
“Courts may dismiss for lack of subject matter
jurisdiction on any one of three different bases: (1) the
complaint alone; (2) the complaint supplemented by undisputed
facts in the record; or (3) the complaint supplemented by
undisputed facts plus the court's resolution of disputed
facts.” Clark v. Tarrant Cty., 798 F.2d 736,
741 (5th Cir. 1986) (citing Williamson v. Tucker,
645 F.2d 404, 413 (5th Cir. 1981)). The plaintiff bears the
burden of demonstrating that subject-matter jurisdiction
exists. See Ramming v. United States, 281 F.3d 158,
161 (5th Cir. 2001). “[A] motion to dismiss for lack of
subject matter jurisdiction should be granted only if it
appears certain that the plaintiff cannot prove any set of
facts in support of his claim that would entitle [the]
plaintiff to relief.” Ramming, 281 F.3d at 161
(citing Home Builders Ass'n of Miss., Inc. v. City of
Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998)).
12(b)(6) allows dismissal if a plaintiff fails “to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) must be read in
conjunction with Rule 8(a), which requires “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). A complaint
must contain “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp.v.
Twombly, 550 U.S. 544, 570 (2007). Rule 8 “does
not require ‘detailed factual allegations,' but it
demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556).
“The plausibility standard is not akin to a
‘probability requirement,' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550, U.S. at 556).
withstand a Rule 12(b)(6) motion, a “complaint must
allege ‘more than labels and conclusions, '”
and “a formulaic recitation of the elements of a cause
of action will not do.” Norris v. Hearst Tr.,
500 F.3d 454, 464 (5th Cir. 2007) (quoting Twombly,
550 U.S. at 555). “Nor does a complaint suffice if it
tenders ‘naked assertion[s]' devoid of
‘further factual enhancement.'”
Iqbal, 556 U.S. at 678 (alteration in original)
(quoting Twombly, 550 U.S. at 557). “[A]
complaint ‘does not need detailed factual
allegations,' but must provide the plaintiff's
grounds for entitlement to relief-including factual
allegations that when assumed to be true ‘raise a right
to relief above the speculative level.'”
Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007) (quoting Twombly, 550 U.S. at 555).
“Conversely, when the allegations in a complaint,
however true, could not raise a claim of entitlement to
relief, this basic deficiency should be exposed at the point
of minimum expenditure of time and money by the parties and
the court.” Id. (alteration omitted) (quoting
Twombly, 550 U.S. at 558).
government points to this court's decision in Sanchez
v. Clinton, No. H-11-2084, 2012 WL 208565, at *1-*10
(S.D. Tex. Jan. 24, 2012), in which David Israel Sanchez,
represented by Salgado's counsel, filed a similar lawsuit
alleging similar jurisdictional grounds. Id. at
*2-*3. In that case, the government moved to dismiss part of
the pleading, arguing that 8 U.S.C. § 1503(a) provided
the only jurisdictional basis for the ruling Sanchez sought.
Id. at *3. This court granted the motion, holding
that Sanchez's petition could proceed under only 8 U.S.C.
§ 1503(a). Id. at 4. This court found that
Sanchez failed to state a plausible claim under the
Constitution, because the “Full Faith and Credit Clause
does not require the decision of the Texas Department of
Health to be given preclusive effect in United States
passport proceedings”; Congress “may freely
displace or preempt state laws affecting
immigration”; and “the State Department is [not]
required by either statute or regulations to defer to the
State of Texas's administrative findings.”
Id. at *9-*10. This court also found that
Sanchez's other statutory allegations could not proceed
because 8 U.S.C. § 1503(a) provided an adequate remedy,
precluding relief under the Administrative Procedure Act and
the Mandamus Act; the All Writs Act does not create
jurisdiction if none is otherwise established; and the
Passport Act is not a jurisdictional statute. Id. at
*4-*5. Sanchez appealed, and the Fifth Circuit affirmed.
Sanchez v. Kerry, 648 Fed.Appx. 386, 388 (5th Cir.
raises the same arguments that this court rejected in
Sanchez, without identifying material differences
between this case and that decision. The government's motion
is granted. (Docket Entry No. 11). Sanchez's claim for
declaratory relief under 8 U.S.C. § 1503(a) is retained
for further proceedings. The other claims are ...